Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
phrase “virtual reality,” which would suggest that any real property “located” in “cyberspace”
must be “virtually real” property. Metaphor is a two-edged sword.
Indeed, the metaphorical application of real property rules would not, by itself, transform
a physically harmless electronic intrusion on a computer server into a trespass. That is because,
under California law, intangible intrusions on land, including electromagnetic transmissions, are
not actionable as trespasses (though they may be as nuisances) unless they cause physical damage
to the real property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893,
936–937, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Since Intel does not claim Hamidi’s electronically
transmitted messages physically damaged its servers, it could not prove a trespass to land even
were we to treat the computers as a type of real property. Some further extension of the conceit
would be required, under which the electronic signals Hamidi sent would be recast as tangible
intruders, perhaps as tiny messengers rushing through the “hallways” of Intel’s computers and
bursting out of employees’ computers to read them Hamidi’s missives. But such fictions promise
more confusion than clarity in the law. . . .
The plain fact is that computers, even those making up the Internet, are—like such older
communications equipment as telephones and fax machines—personal property, not realty.
Professor Epstein observes that “[a]lthough servers may be moved in real space, they cannot be
moved in cyberspace,” because an Internet server must, to be useful, be accessible at a known
address. But the same is true of the telephone: to be useful for incoming communication, the
telephone must remain constantly linked to the same number (or, when the number is changed, the
system must include some forwarding or notification capability, a qualification that also applies to
computer addresses). Does this suggest that an unwelcome message delivered through a
telephone or fax machine should be viewed as a trespass to a type of real property? We think not:
As already discussed, the contents of a telephone communication may cause a variety of injuries
and may be the basis for a variety of tort actions (e.g., defamation, intentional infliction of
emotional distress, invasion of privacy), but the injuries are not to an interest in property, much
less real property, and the appropriate tort is not trespass.
More substantively, Professor Epstein argues that a rule of computer server inviolability
will, through the formation or extension of a market in computer-to-computer access, create “the
right social result.” In most circumstances, he predicts, companies with computers on the Internet
will continue to authorize transmission of information through e-mail, Web site searching, and
page linking because they benefit by that open access. When a Web site owner does deny access
to a particular sending, searching, or linking computer, a system of “simple one-on-one
negotiations” will arise to provide the necessary individual licenses.
Other scholars are less optimistic about such a complete propertization of the Internet.
Professor Mark Lemley . . . writing on behalf of an amici curiae group of professors of intellectual
property and computer law, observes that under a property rule of server inviolability, “each of
the hundreds of millions of [Internet] users must get permission in advance from anyone with
whom they want to communicate and anyone who owns a server through which their message
may travel.” The consequence for e-mail could be a substantial reduction in the freedom of
electronic communication, as the owner of each computer through which an electronic message
passes could impose its own limitations on message content or source. . . .
A leading scholar of internet law and policy, Professor Lawrence Lessig . . . , has
criticized Professor Epstein’s theory of the computer server as quasi-real property . . . on the
43